Gilbreath v. Farrow

TYSON, J. The bill in this cause was filed to foreclose certain mortgages made an exhibit to it executed by the respondent Gilbreath conveying certain lands described in them. On final hearing the chancellor decreed a foreclosure of one of the mortgages, the last executed, which secured a note bearing date February 10,_ 1902. The resepondent, Mrs. Gilbreath, here contends that a portion of the land conveyed .by the mortgage in equity belonged to her, notwithstanding the legal title to it was in her husband, her co-respondent, the mortgagor. This contention is based upon the theory that her husband used her money to pay for the land claimed by her and that the complainant is chargeable with notice of her equity growing out of that fact. In other words, she, by her cross-bill, seeks to establish a resulting trust in a certain part of the- land conveyed by her husband’s mortgage to the complainant. In order to accomplish this, it was incumbent upon her not only to aver the facts out of which the trust originated with distinctness and precision, but to prove the averment by “clear, full and convincing evidence.” — McCall v. Rogers, 77 Ala., 349; Shelton v. Aultman, 82 Ala. 315, 318, 8 South. 232. We have only to direct attention to the averment of the cross-bill to see that they are wholly insufficient, when tested by the rule, declared in the cases above cited, to afford the relief sought. Furthermore, if by any sort of construction its averments could be held to be sufficient (which they are not), they are not established by that degree of proof required. We are next asked to review the order of the chancellor denying the petition of the respondent, Sam Gil-breath, made at a term of the court held subsequent to' [186] the one at which the final decree was rendered foreclosing the mortgage. The matters involved in that petition, occurring as they did, after the final decree was rendered, as did the ruling on it, are clearly not reversible upon appeal from that decree. And as an examination of the record does not disclose that this appeal was prosecuted from that order, but that it is prosecuted from the decree foreclosing the mortgage, the order is not before us for revision. — Chicago Portrait Co. v. Robbins, 42 South. — 1. It is not insisted on the part of appellant, Sain Gilbreath, that an error was committed in the rendition of the final decree as to him. • Affirmed. Weakley, C. J., and Simpson and Anderson, JJ., concur.